Human Trafficking in Texas: Criminal Defense Perspective Part 2 of 2

In Texas, arrests are made by both state and federal law enforcement asserting violation of various crimes involving the human trafficking of individuals, with many of these cases alleging the sex trafficking of minors (those under the age of 18 years).  For more on the various crimes involved in the trafficking of humans in Texas, read our earlier discussion in “Human Trafficking in Texas: Criminal Defense Perspective Part 1 of 2.”

Sex trafficking is alleged to be occurring more in Texas than any other state in the union, except for California.  This, according to cases reported to the Human Trafficking Hotline (go here to read the details).  This means that defending clients against sex trafficking charges is a growing part of the Texas criminal defense lawyer’s docket.

Evolving Human Trafficking Laws: State and Federal

Essentially, sex trafficking cases may be brought under two independent legal jurisdictions: federal and state.  The Texas Penal Code defines state trafficking crimes.  A series of federal acts have been passed regarding federal crimes of trafficking, including:

• The Trafficking Victims Protection Act of 2000;
• The Trafficking Victims Protection Reauthorization Acts of 2003 and 2005;
• The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008;
• The Trafficking Victims Protection Reauthorization Act of 2013; and
• The Justice for Victims of Trafficking Act of 2015.

From a legal perspective, this is new.  Legislation defining various crimes for human trafficking, as well as corresponding penalties, is relatively recent (building over the past decade) and continues to evolve.  This is true at both the state and federal level.

From a criminal defense standpoint, this trend of criminalizing aspects of trafficking is very important.  For one thing, it requires a continuous monitoring of pending legislation at both the state and federal levels.

Additionally, it necessitates recognition that there may be little case precedent and court opinions dealing with the newer statutes; defense arguments may make new law at the appellate level.   See, e.g., Roby, Jini L., and Melanie Vincent. “Federal and state responses to domestic minor sex trafficking: The evolution of policy.” Social work 62.3 (2017): 201-210.

Finally, human trafficking at the sentencing stage of any criminal matter involves serious punishment.  Under both federal statute and state law, convictions for human trafficking can come with severe felony penalties.  Lengthy prison sentences are often sought by prosecutors, particularly when minor trafficking victims are involved.

From a Texas criminal defense viewpoint, the most serious of these cases involves someone accused of continuous trafficking in state court.  Why? Someone convicted on a count of continuous trafficking can be sentenced to life behind bars.

What Is Continuous Trafficking?

In 2011, the Texas Penal Code was expanded to include the specific crime of “continuous trafficking of persons.” Essentially, continuous trafficking involves the prosecution alleging the accused has committed at least two trafficking offenses within a time frame of 30 days (or longer).  Texas Penal Code Sec. 20A.03 provides the following statutory definition:

A person commits an offense if, during a period that is 30 or more days in duration, the person engages two or more times in conduct that constitutes an offense under Section 20A.02 against one or more victims.

When law enforcement investigations assert that the accused has been involved in the trafficking of humans for at least one month’s time, then the legal ramifications become much more serious under state law.  Continuous trafficking is considered a serious felony offense with severe penalties attached to it.

Penalty Ranges: Conviction and Sentencing for Continuous Trafficking In Texas

Pursuant to Texas Penal Code Sec. 20A.03(e), those convicted of continuous trafficking are guilty of a first degree felony and face imprisonment  in a sentence ranging from 25-99 years, or for imprisonment for life.

If a person is convicted of the single charge of continuous human trafficking in Texas, they face the possibility of a judge sentencing them to spending the rest of their lives behind bars. 

Danger of Trending Trafficking Laws and Prosecutions: Swept Up in the Web

A few years ago, an important article was published in the mainstream news media dealing with human trafficking prosecutions, entitled “Lawyers: Human trafficking laws may hit some too hard,” written by Yamiche Alcindor and published by USA Today on March 13, 2013.

In the piece, a warning was sounded that in their zeal to draft anti-trafficking legislation, legislators could end up with laws on the books that “could unintentionally lead to wrongful convictions and unfair stigmatization,” with “marginal players” who unwittingly did business with traffickers being unjustly accused, if not convicted.

In the six (6) years since that article was published, more laws have been passed to criminalize aspects of human trafficking – and arrests have indeed been made of people who were not aware that the crime of trafficking was going occurring under their noses.

Today in Texas, anyone running a business or earning a living where his or her path might cross with someone involved in human trafficking must be aware that they, too, may be subject to investigation and arrest on state or federal trafficking charges.  This includes motel or hotel operators; limo service drivers; travel agents; and others as they somehow come into contact with the trafficking enterprise.

The arresting officers will not free anyone simply because they say they had no idea that sex trafficking was happening.  These cases may involve a sweeping number of arrests, in various jurisdictions.  See, for instance the Dallas, Texas, defendants who were among 36 people arrested in “one of the largest and most sophisticated transnational sex trafficking organizations operating in the United States,” according to the U.S. Attorney’s office.  For details, read “Federal jury convicts 5 on charges they operated huge sex trafficking ring,” written by Matt Sepic and published by MPRNews on December 5, 2018.

How Much Fake News Surrounds Sex Trafficking?

Which brings us to another consideration: what is really going on in this trend to expand human trafficking laws and increase the number of investigations and arrests based upon human trafficking laws?

Shockingly, more and more defense lawyers are hearing confirmations of our concerns that a lot of fake news and exaggeration surrounds the issue of sex trafficking these days. 

1.  Reason – Stossel Expose

Consider the following news report from Reason, Elizabeth Nolan Brown reporting:

<iframe width=”560″ height=”315″ src=”https://www.youtube.com/embed/AdtIUxWg_6c” frameborder=”0″ allow=”accelerometer; autoplay; encrypted-media; gyroscope; picture-in-picture” allowfullscreen></iframe>

https://youtu.be/AdtIUxWg_6c

Reason’s analysis, in part, is that law enforcement today is all too often considering “sex trafficking” and “prostitution” as synonymous charges, even though they are two distinctly different crimes under state and federal law.

The Reason report uses the investigation and arrest of Robert Kraft, the owner of the New England Patriots, as an example.  Mr. Kraft was arrested as part of a “sex trafficking” sting.  Later, after all that national media hype, prosecutors admitted there was no trafficking involved.

Discussing the current trend toward human trafficking arrests in this country with John Stossel, Ms. Brown’s expose reveals that today, the amount of actual human trafficking in this country is “often exaggerated,” and the “300,000 children” repeatedly said to be at risk of trafficking is a figure that comes from a research study its own author has renounced.  Brown calls this number “bullcrap.”

I encourage you to watch the entire video – it’s very informative.

2. Comparative Analysis of Human Trafficking in Major U.S. Newspaper Coverage

It’s not just John Stossel.  Consider the George Washington University study published in the Journal for Human Trafficking a couple of years back: Sanford, Rachealle, Daniel E. Martínez, and Ronald Weitzer. “Framing human trafficking: A content analysis of recent US newspaper articles.” Journal of Human Trafficking 2.2 (2016): 139-155 (“Study”).

This professorial investigation into recent news coverage of human trafficking involving the New York Times and the Washington Post resulted in the following “key findings.” In their opinion, things printed in the main stream media (their “constructions”) impact not only public policy (i.e., what laws are passed) but also enforcement practices (who gets investigated and arrested). Study, page 153.

From the Washington University Study (quoting from page 153):

• The content of coverage frequently mirrors official government claims; the newspapers rarely question even some of these claims, let alone serve as a conduit for the expression of alternative views. This is partly because the news media rely so heavily on official sources;
• The reporting of enforcement actions and the use of law-enforcement sources have increased substantially since the timeframe of Gulati’s study, indicating a shift in news media’s focus from policy debates to implementation;
• Victims are most often portrayed as minors and females, reflecting prevailing assumptions regarding ideal victimhood, where some individuals are viewed as more “legitimate” and worthy of assistance than others;
• The two newspapers generally do not define human trafficking for their readers and almost never question official claims regarding the magnitude of the problem (cf. Kessler, 2015a, 2015b).

Importantly, they point out that “… [there is a] low percentage of articles attempting to quantify the problem or to question prevailing claims about its scope — coupled with these newspapers’ clear support of existing or more punitive anti-trafficking policies — demonstrates how thoroughly the dominant discourse has been embraced by the press.”

From a criminal defense lawyer’s perspective, what does this mean?

It means that actual human trafficking crimes in Texas may not be as rampant as law enforcement perceives or as the media reports it to be.  People are vulnerable to being wrongfully arrested and charged for human trafficking in this environment.

Some may even be wrongfully convicted of human trafficking, which can be especially harsh if the charges include the severe sentencing available in a Continuous Trafficking charge under Texas Penal Code Sec. 20A.03(e).

Prostitution vs Human Trafficking

Human trafficking investigations and arrests may or may not result in the case beginning dismissed.  Perhaps the prosecution does have a case for some criminal activity.  However, law enforcement and prosecutors need to be clear in distinguishing between human trafficking and other activities, such as prostitution.

As an example, this month the trial of Robert Kraft, the owner of the New England Patriots, is taking place in a Palm Beach County, Florida, courtroom.  Mr. Kraft is not being tried for trafficking.  He is being tried for allegedly soliciting prostitution (two counts) – in a case where it’s becoming more and more curious whether or not Mr. Kraft will be found guilty of anything.  Read, “Prostitution solicitation case against Patriots owner Robert Kraft is on thin ice after bombshell ruling barring massage parlor video as evidence,” written by Dan Mangan and published by NBC.com on May 14, 2019.

This week, things got even more interesting.  The Associated Press has released video showing police detectives promising all sorts of wonderful things to one witness if she would agree to testify that she was a human trafficking victim.  For details, read “Deputies Urge Woman From Robert Kraft Case Day Spa To Say She Was Trafficked,” published by CBS Miami on June 10, 2019.

To be clear, prostitution is a crime.  Texas Penal Code Section 43.05 makes it a felony of the second degree to compel prostitution in Texas.  (It is a felony of the first degree if a minor is involved.) It is not the same as sex trafficking.  Under Texas Penal Code Section 43.05(a), compelling prostitution is defined as a person who knowingly:

(1)  causes another by force, threat, or fraud to commit prostitution; or

(2)  causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time of the offense.

For more on prostitution, read my in-depth article “Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution.”

The point here is that anyone investigated, arrested, or charged with human trafficking must vigorously defend against those charges and that defense should include an awareness of how enamored law enforcement is with trafficking allegations.   It’s as popular as popcorn right now.

Criminal Defense against Charges of Human Trafficking

Of course, there is human trafficking occurring in Texas; but sex trafficking may not be as rampant as reported in the media or assumed by the police.  Maybe it didn’t happen.  Or maybe the wrong crime is being charged. Sex for money is an ancient profession, and correspondingly, arrests will be made for prostitution (being a sex worker); solicitation (being a john); as well as promotion and compelling it (being a pimp).

Criminal defense lawyers must be ready in any case involving allegations of sex trafficking to fight against the assumptions being made today.

• Were these circumstances really trafficking?
• Were there instances of alleged prostitution?
• Is there evidence to support any of these charges?
• Is this evidence admissible?
• Can the case be dismissed through negotiation?
• Can the charges be minimized through plea bargaining?
• Can the case be won in an examining trial?

This need for keen scrutiny of any sex trafficking charge is particularly true here in Dallas, where we have a history with issues involving the police and sex trafficking cases.  For more, read our discussion in “Dallas Sex Crime Arrests and Possible Criminal Charges Against The Dallas Vice Unit.”

Even the whiff of someone being investigated for sex trafficking can have dire consequences for the person accused: careers, relationships, scholarships, and more can be jeopardized.  In these matters, it is very important to launch an aggressive defense strategy as soon as possible.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles,” Pre-Arrest Criminal Investigations.”